ARDC Review Board Recommends 30 Day Suspension for MCLE Noncompliance

An Illinois attorney, who was employed as an assistant state’s attorney, failed to complete his MCLE certification (continuing legal education) and was stricken from the master roll of attorneys. This unfortunate lapse netted him an additional 30 day suspension. The ARDC Review Board recommended a 30 day suspension, which was one-half the suspension recommended by the Hearing Board.

The facts as recounted by the Panel are:

Once Respondent became licensed to practice law in November 2015, Illinois Supreme Court Rule 793 required him to complete 15 hours of MCLE credit, including six hours of a basic skills course or an approved mentoring program, by November 30, 2016, and to report his completion of those requirements to the MCLE Board by December 31, 2016.

In September 2016, the MCLE Board mailed an initial notice of the applicable MCLE requirements to Respondent at the residence address then on file with the ARDC. Respondent, who had moved in August 2016, did not recall if he received that notice.

On December 6, 2016, Respondent updated his contact information with the ARDC and gave the McLean County State’s Attorney’s Office address as his business address. Subsequent MCLE and ARDC communications were sent to that address.

On December 22, 2016, the MCLE Board sent Respondent an email reminding him of his December 31 reporting deadline. Respondent received that email. He did not report compliance by December 31. Thus, on January 6, 2017, the MCLE Board sent Respondent a notice of noncompliance, which informed him that he had until March 2, 2017 to complete the required MCLE credits, report completion, and pay a $250 late fee, or his name would be removed from the master roll.

Respondent received that notice sometime during the second week of January. Around the end of January, he called the MCLE Board and left a voicemail message. A Board employee, Susan Doran, called him back on the next business day, January 30, and left a message. He replied on February 6, and spoke with Doran and another Board employee, Kevin Leonard.

Doran and Leonard testified at Respondent’s hearing that, in their conversations with Respondent, he addressed only the late fee and did not raise any issues about the sufficiency of his credits. Leonard also testified that he told Respondent that Respondent had not reported compliance. MCLE Board Director Karen Litscher Johnson also testified that attorneys must report compliance online and cannot report by telephone. Respondent acknowledged that he did not report compliance using the online system, but he further testified that someone at the Board, whom he believed was Leonard, told him by phone that he was in compliance and only needed to work on getting the fee waived. The Hearing Board found his testimony not credible.

On February 27, the MCLE Board’s manager of attorney compliance and outreach, Christina Pusemp, telephoned Respondent and left a message. He did not return her call.

Respondent testified that he used the Board’s online portal to submit a fee waiver request prior to March 2. The Board did not receive a written fee waiver request or supporting documentation from Respondent. Respondent sent an email to the Board regarding a fee waiver on March 10, but the Board did not receive the email because Respondent used an incorrect email address.

As of March 2, 2017, Respondent had not reported compliance. Thus, on March 3, the MCLE Board notified the ARDC that Respondent had not complied with the MCLE requirements. On March 16, the ARDC Registrar’s Office sent Respondent a notice of impending removal, stating that he would be removed from the master roll if he did not bring himself into compliance by April 14.

Respondent testified that he called the Board in late March 2017, spoke with someone named “Dee, ” and was told that his email had been received, that he was “good,” and that “no news is good news.” (Hearing Bd. Report at 7.) He therefore assumed the matter had been resolved.

As of April 19, Respondent still had not reported compliance to the MCLE Board, and consequently was removed from the master roll on that date. The ARDC sent him a removal notice informing him of that fact. He testified that he did not receive the notices of impending removal or removal.

Between April 19 and November 21, 2017, Respondent routinely appeared in court on behalf of the State. He estimated that he appeared as an assistant state’s attorney in approximately 300 cases during that time. He therefore practiced law for a seven-month period when he was not authorized to do so.

On November 21, 2017, the McLean County State’s Attorney told Respondent that he had learned that Respondent was not authorized to practice law in Illinois. On November 22, Respondent called the MCLE Board and spoke with an employee who suggested that he speak with Pusemp, who was away for the Thanksgiving holiday. On November 27, Respondent spoke with Pusemp and sent her the March 10, 2017 email and his CLE certificates. She noted that the email had been sent to an incorrect email address and that Respondent had not satisfied his MCLE requirements because he had not taken the Basic Skills Course.

That night, he completed an online Basic Skills Course and submitted information to the MCLE Board to support his request for a fee waiver. The Board approved the request and Respondent was reinstated to the master roll on November 29, 2017. That same day, the McLean County State’s Attorney terminated his employment.

The Hearing Board found that the attorney violated Rule 5.5(a) and engaged in the unauthorized practice of law. The Review Board affirmed that finding. The panel explained in part:

Three factors support a short suspension rather than censure in this matter. First, the goals of discipline include maintaining the integrity of the profession and safeguarding the administration of justice from reproach. The Hearing Board noted that it was “particularly mindful of these concerns here, given the nature of Respondent’s employment” as an assistant state’s attorney. (Hearing Bd. Report at 10.) It stated that “[t]he fact that an Assistant State’s Attorney would practice law while not authorized to do so, especially over time, carries a particular risk of diminishing the public’s perception of the integrity of the legal system.” (Id.) We agree with its reasoning.

Second, the Hearing Board was clearly disturbed by Respondent’s failure to recognize his wrongdoing, noting that he still does not understand his professional obligations. The extent to which a respondent realizes the seriousness of his misconduct is a factual determination to which this Board gives great deference. In re May, 93 CH 320 (Review Bd., Sept. 6, 1995), approved and confirmed, M.R. 11764 and 11457 (Dec. 1, 1995).

Third, the Hearing Board found that Respondent did not testify credibly when he claimed not to have received the impending-removal notice. Moreover, Respondent’s testimony as to his March 2017 phone call with “Dee” could be viewed as a complete fabrication. An attorney’s false testimony at his or her disciplinary hearing may be considered in aggravation. See In re Vavrik, 117 Ill. 2d 408, 415-16, 512 N.E.2d 1226 (1987); In re Stillo, 68 Ill. 2d 49, 55, 368 N.E.2d 897 (1977).

Based on these factors, we believe a short suspension is warranted. However, we also believe that the 60-day suspension recommended by the Hearing Board is longer than necessary and is not supported by authority. Instead, we would recommend a 30-day suspension, which we believe is more commensurate with Respondent’s conduct and consistent with precedent.

Comment: this is obviously a mistake that any lawyer could have made. You get busy and you become distracted. You forget to comply with the continuing legal education requirements and then you fail to take prompt remedial measures to comply. If you make an error like this one, call a respected senior colleague and seek advice. Discipline could have been avoided here with a prompt apology and, I think, disclosure to the employer.

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